Chapman v. Cooperative, Case No. 15-C-533

CourtUnited States District Courts. 7th Circuit. United States District Court of Eastern District of Wisconsin
Writing for the CourtHON. RUDOLPH T. RANDA U.S. District Judge
Docket NumberCase No. 15-C-533
Decision Date24 February 2016


Case No. 15-C-533


February 24, 2016


Pro se Plaintiff Thomas Edward Chapman filed a wage complaint with the Wisconsin Department of Workforce Development Equal Rights Division (ERD) alleging that he was not being paid minimum wage as a cab driver. Chapman claims that Defendants Yellow Cab Cooperative,2 Ali Mohamad, and Parshua Giri retaliated against him for filing the ERD Complaint by terminating his employment. He maintains that Defendant Wisconsin Department of Financial Institutions (DFI) deprived him of his civil rights. Chapman also states "state action: contract to franchise with

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Yellow Cab charter." (Compl. 6, ECF No. 1.) Chapman seeks damages, injunctive and declaratory relief under 42 U.S.C. § 1983, and damages under Title VII, as amended.

The Defendants filed motions (ECF Nos. 16, 30) pursuant to Fed. R. Civ. P. 12(b) asserting this action should be dismissed on the following grounds: (1) failure to effect proper service; (2) failure to state a cause of action; (3) the Title VII claim is untimely and Chapman has failed to exhaust administrative remedies; (4) lack of subject matter jurisdiction over any Wisconsin Fair Employment Act (WFEA) claims; and (5) the action is barred by res judicata.

Chapman opposes dismissal in multiple filings and has filed a motion to amend/correct claim seeking to add a claim pursuant to 42 U.S.C. § 1981. (ECF No. 35.) This Decision and Order addresses the pending motions.

Failure to State a Cause of Action

The Defendants assert that Chapman has failed to state a cause of action for retaliation under Title VII, because filing a wage claim is not activity protected by Title VII. Further, they assert that § 1983 claims are only appropriate against state actors who are acting under color of law, and Chapman has not alleged that Yellow Cab, Mohamed, and Giri were acting

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under the color of law. They also oppose Chapman's proposed amendment of the complaint to add a § 1981 claim, contending it fails to state a cause of action.

The Defendants proffer six exhibits in support of their motions. In general, when extraneous materials are presented in support of a motion to dismiss, the Court has discretion either to exclude the materials and handle the case as a straightforward motion to dismiss, or to consider the materials and convert the motion to one for summary judgment. See Fed. R. Civ. P. 12(d); See Levenstein v. Salafsky, 164 F.3d 345, 347 (7th Cir. 1998). There are, however, limited exceptions.

One of those exceptions, afforded by Rule 10(c), arises because "[a] copy of a written instrument that is an exhibit to a pleading is a part of the pleading for all purposes." See Cole v. Milwaukee Area Technical Coll. Dist., 634 F.3d 901, 903 (7th Cir. 2011) Exhibits one and three, Chapman's Labor Standards Complaint and his ERD Complaint (ECF Nos. 17-1, 17-3, 31-1, 31-3), are also exhibits to Chapman's Complaint. Therefore, they may be considered without converting the motion to a motion for summary judgment.

Exhibits two, five, and six (an administrative decision dismissing Chapman's wage and hour complaint, an order dismissing the

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administrative retaliation action against Yellow Cab, and a letter relating to the retaliation case from Yellow Cab's attorney to Chapman (ECF Nos. 17-2, 17-5, 17-6, 31-2, 31-5, 31-6), are matters within the public record and, for that reason, may be considered by the Court without converting the motions to motions for summary judgment. See Fed. R. Civ. P. 12(d); Cont'l Cas. Co. v. Am. Nat'l Ins. Co., 417 F.3d 727, 731 n.3 (7th Cir. 2005).

However, there is no indication that exhibit four, a settlement agreement between Chapman and Yellow Cab regarding the retaliation complaint, is part of the administrative record or falls into some other exception. (ECF Nos. 17-4, 31-4.) Therefore, that document is excluded from consideration.

"[T]he pleading standards for pro se plaintiffs are considerably relaxed, Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam), even in the wake of Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662, (2009)." Luevano v. Wal-Mart Stores, Inc., 722 F.3d 1014, 1027 (7th Cir. 2013) (parallel citations omitted). To state a claim, a complaint need only contain a short and plain statement showing that the plaintiff is entitled to relief. EEOC v. Concentra Health Servs., Inc., 496 F.3d 773, 776 (7th Cir. 2007). All well-pleaded allegations are presumed to be true, and all inferences are read in the light most

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favorable to the plaintiff. Lavalais v. Vill. of Melrose Park, 734 F.3d 629, 632 (7th Cir. 2013). A complaint survives a Rule 12(b)(6) motion if it contains sufficient factual allegations to "state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Adams v. City of Indianapolis, 742 F.3d 720, 728 (7th Cir. 2014) (quoting Iqbal, 556 U.S. at 678).

Factual Background3

Chapman drove a licensed cab owned by Dennis Edwards. He paid rent on the cab to Giri, who leased it from Edwards. On January 30, 2013, Chapman filed a wage complaint with the ERD against Yellow Cab, a cooperative organization of taxicab drivers. In February, the ERD informed Yellow Cab of the administrative complaint. On March 4, 2013, Giri informed Chapman that Mohamed, Yellow Cab's president, had terminated Chapman's employment because he was suing Yellow Cab.


A Title VII retaliation claim arises under 42 U.S.C. § 2000e-3 which

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It shall be an unlawful employment practice for an employer to discriminate against any of his employees . . . because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.4

(Emphasis added.) 42 USC § 1981 prohibits racial discrimination and retaliation against employees when a contractual relationship exists between the employer and employee. The "Civil Rights Act of 1866 . . . protects the right of all persons 'to make and enforce contracts regardless of race.' 42 U.S.C. § 1981." Smith v. Bray, 681 F.3d 888, 895 (7th Cir. 2012) In 1991, Congress expanded the reach of the statute, which has now been confirmed to authorize claims for retaliation "if one person takes action against another for asserting the right to substantial contractual equality provided by § 1981." Id. at 896 (citing CBOCS West, Inc. v. Humphries, 553 U.S. 442, 445 (2008)). Though § 1981 and Title VII "differ in the types of discrimination they proscribe, 'the methods of proof and elements of the case are essentially identical.'" Davis v. Time Warner Cable of Se. Wi., L.P., 651 F.3d 664, 671-72 (7th Cir. 2011). (Citations omitted).

"To plead a Title VII retaliation claim, a plaintiff must (though [he]

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need not use the specific terms) allege that [he] engaged in statutorily protected activity and was subjected to adverse employment action as a result of that activity."5 Huri v. Office of the Chief Judge of the Circuit Court of Cook Cty., 804 F.3d 826, 833 (7th Cir. 2015).

The phrase "this subchapter," see 42 U.S.C. § 2000e-3, refers to 42 U.S.C. §§2000e through 2000e-17, the provisions that set forth an employee's rights when an employer has discriminated against him on the basis of race, color, sex, religion, or national origin. It follows that a charge "under this subchapter" is a charge that alleges discrimination on the basis of those prohibited grounds. See Tomanovich v. City of Indianapolis, 457 F.3d 656, 663-64 (7th Cir. 2006) (holding that two internal grievances were not protected activities for purposes of a Title VII anti-retaliation provision because in complaining about pay discrimination the plaintiff did not claim that the discrimination resulted from his national origin or his membership in another protected class); also citing Gleason v. Mesirow Fin., Inc., 118 F.3d 1134, 1147 (7th Cir. 1997) (although filing an official complaint with an employer may constitute statutorily protected activity

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under Title VII, the complaint must indicate the discrimination occurred because of sex, race, national origin, or some other protected class; holding that the plaintiff's general complaint about management style without raising the subject of sexual harassment fails to constitute protected activity); Sitar v. Ind. Dep't of Transp., 344 F.3d 720, 727 (7th Cir.2003) (affirming the district court's grant of summary judgment to the employer on the plaintiff's retaliation claim because the plaintiff's complaint to his employer "did not invoke any action protected by Title VII"); Miller v. Am. Fam. Mut. Ins. Co., 203 F.3d 997, 1008 (7th Cir. 2000) (holding that the plaintiff did not engage in a protected activity where "[h]er complaints . . . concerned a general displeasure with being paid less than her co-workers given her longer tenure and the fact that she had trained some of them" and not discrimination related to a protected class).

Chapman's Complaint does not include any allegation indicating that race, color, sex, religion, or national origin played a role in his ERD wage complaint. Therefore, Chapman has failed to state a claim under § 1981, and his request to file his proposed amended Complaint is denied on the grounds of futility.6 Furthermore, because there is no indication

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that race, color, sex, religion, or national origin played a role in his wage complaint, his Title VII claim is subject to dismissal for...

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